Tilghman v. Chicago & N.W. Ry. Co.

• Decision Date: 08 May 1962
• Docket Number: No. 50498,50498
• Citation: Tilghman v. Chicago & N.W. Ry. Co., 115 N.W.2d 165, 253 Iowa 1339 (Iowa 1962)
• Parties: Charles TILGHMAN, Appellee, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a Corporation, and Carroll Pletcher, Appellants.
• Court: Iowa Supreme Court

Page 165

115 N.W.2d 165

253 Iowa 1339

Charles TILGHMAN, Appellee, v.CHICAGO & NORTH WESTERN RAILWAY COMPANY, a Corporation, and Carroll Pletcher, Appellants.

No. 50498.

Supreme Court of Iowa.

May 8, 1962.

Rehearing Denied July 23, 1962.

Archerd, Birdsall & Draheim, Clarion, and Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for appellants.

Lundy, Butler & Wilson, Eldora, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover from defendantsChicago & N. W. R. Co. and Carroll Pletcher, engineer on its freight train, for personal injuries to plaintiffCharles Tilghman, driver of a truck which collided with the train at a grade crossing near the northwest edge of the town of Woolstock.Defendants appeal from judgment against them on jury verdict for plaintiff under the doctrine of last clear chance.

Errors are assigned in: rulings that a jury question was presented under the last clear chance doctrine, giving instructions 7 and 11 to the jury, excluding certain testimony, and permitting plaintiff's counsel to argue the extent of his injuries and damages in closing jury argument.

The collision occurred October 24, 1958, about 7:20 a. m., at the grade crossing of a blacktop primary highway and the railroad track.Plaintiff was driving an unloaded tractor-trailer, 45 feet long, east.The train was going north.It consisted of 28 cars pulled by two diesel units.Sixteen cars were loaded, 12 empty.Front end of the forward diesel unit struck the right side of the tractor just beneath its right door.The truck was moving from 30 to 47 miles per hour, the train from 20 to 35.There is much evidence the speed of both remained constant at all material times prior to the collision.The train traveled about 1600 feet north from the point of collision before it was brought to a stop.There were no skid or tire marks on the highway to indicate brakes were applied to the truck.

Three witnesses who lived within two blocks of the crossing testify for plaintiffthey heard no whistle for the crossing.One says she was listening attentively for the train whistle because she thought her son, a brakeman for the railroad, would be on the train.The trainmen testify a whistle was sounded for the crossing and a distress or emergency signal was constantly sounded while the train traveled several hundred feet just before reaching the crossing.

The only claim of negligence submitted to the jury was that when plaintiff reached a point where he was in peril defendant engineer was aware of plaintiff's situation and realized, or in the exercise of reasonable care should have realized, he was in peril and at that time the engineer had the ability to decrease speed of the train to permit plaintiff to pass safely over the crossing, and thus had the last clear chance to avoid the collision, but he negligently failed to do so.

In motions for directed verdict and judgment notwithstanding the verdictdefendants contended there was no evidence from which they could be held liable under the doctrine of last clear chance.The argument in support of this contention here is that when defendants knew or should have known plaintiff was in peril, insufficient time remained to avoid the collision by reducing speed of the train to permit him to pass safely over the crossing.

I.The doctrine of last clear chance presupposes plaintiff's contributory negligence.It applies where there is evidence defendant(1) has actual knowledge of plaintiff's situation, (2) realizes or should in the exercise of reasonable care realize he is in peril, (3) has the ability to avoid injury to plaintiff thereafter and, of course (4), fails to do so.Strom v. Des Moines & Central Iowa Ry. Co., 248 Iowa 1052, 1070, 82 N.W.2d 781, 791, and citations;Olson v. Truax, 250 Iowa 1040, 1049, 97 N.W.2d 900, 905, and citations.

'The injured party may not ordinarily invoke the last clear chance doctrine where there is a collision between his moving motor vehicle and a train at a crossing.Such a vehicle approaching a railroad does not usually reach a position of danger until it can no longer be stopped or turned aside and there is seldom appreciable time thereafter for the trainmen, in the exercise of ordinary care, to avoid the collision.'(citations.)Stromcase, supra, at page 1071 of 248 Iowa, page 792 of 82 N.W.2d.

The facts in the Strom case make the actual decision there on the question of last clear chance inapplicable here.That collision occurred at might.Nothing indicated Mrs. Strom was oblivious to the train's approach or that the trainmen were so advised until it was clearly too late to avoid the collision.It could not be known until she was 60 feet from the crossing that she would not turn off at that point onto an intersecting highway which did not cross the railroad tracks.

In considering this first assigned error of course it is our duty to view the evidence in the light most favorable to plaintiff.

There can be no question concerning proof of the first and fourth propositions above enumerated--defendants had actual knowledge of plaintiff's situation and failed to avoid injury to him.We must hold that when the evidence is viewed most favorably to plaintiff there is substantial proof defendants realized, or should in the exercise of reasonable care have realized, plaintiff was in peril and had the ability to avoid injury to him thereafter.

The engineer was seated on the right (east) side of the front diesel unit as it approached the crossing.The fireman and head brakeman were seated on the left (west) side--the side from which plaintiff approached.Both the fireman and brakeman testify they observed the truck continuously from the time it was a quarter mile from the crossing.The fireman says his observation was that speed and direction of the truck remained the same.

The brakeman testifies that when both truck and train were about 500 to 600 feet from the crossing he called to the engineer, 'Keep blowing the whistle because I don't think he sees us,' referring to the truck driver.The truck kept coming and the brakeman then said to the engineer, 'Just keep blowing the whistle because the truck is still coming and I don't think he sees us.'When the truck was coming off a highway bridge 69.5 feet west of the crossing the brakeman told the engineer to 'spike her,' meaning to apply the emergency brakes.

The fireman says when the train was 200 to 300 feet from the crossing he told the engineer to keep whistling, warned him the truck was still coming and its speed had not changed.

Defendant engineer testifies the fireman and brakeman told him when the train was 300 to 400 feet from the crossing this truck was still approaching and when he was about 200 to 300 feet from the crossing they both told him there was a truck approaching from the west traveling fast and it didn't look like he was going to stop.Because these two trainmen told him this he gave the distress or emergency signal by holding down the whistle cord continuously until the time of collision.

Plaintiff, who was alone in the truck, is the victim of amnesia and remembers nothing that happened from the time he turned onto the highway west of the crossing until about a week afterwards.

Reasonable minds could fairly conclude the brakeman and fireman realized plaintiff was oblivious to the approach of the train and hence in peril, and they so informed the engineer, at a time when he had the ability to avoid injury to plaintiff.A reasonable explanation of the engineer's continuing to sound the distress or emergency signal is that he believed plaintiff was unaware of the train's approach and hoped thereby to call it to his attention.

Resort need not be had to our holdings that it is not necessary to show defendant's actual knowledge of plaintiff's peril if defendant should have realized the peril in the exercise of reasonable care.'It is sufficient if peril was so imminent that to a person of ordinary prudence the infliction of injury would seem probable if proper effort were not made to avoid it.'Menke v. Peterschmidt, 246 Iowa 722, 726, 69 N.W.2d 65, 69, and citations;Winegardner v. Manny, 237 Iowa 412, 415, 21 N.W.2d 209, 211.

It was not necessary, in order to avoid the collision, to stop the train before it reached the crossing.If its speed had been reduced just a little or a little sooner plaintiff could have crossed the railroad track in safety.If the train had reached the crossing just one second later than it did this collision would have been avoided.At least the jury could properly so find.As it was, the truck was partly across the track when it was struck without substantial reduction in the train's speed.

There is clear evidence defendant did nothing to avoid this collision except to continue to sound the whistle to which reasonable minds could find plaintiff was oblivious, as defendants knew or should have known.The engineer admits he did not reduce the throttle until after the collision.The conductor says he did not hear or feel the brakes applied.The rear brakeman testifies there was air in the air gauge after the collision and if the emergency brakes had been fully applied it would probably have registered zero.As stated, the train traveled 1600 feet after the collision.

The fact the trainmen may not have had time, after realization of plaintiff's peril, to stop the train does not prevent operation of the last clear chance doctrine where the evidence indicates that had they even checked the speed of the train it would have enabled plaintiff to clear the crossing.44 Am.Jur., Railroads, section 539, page 789.See alsoArp v. Illinois Central R. Co., 230 Iowa 869, 872, 299 N.W. 413, 414.

Defendants' argument overlooks the fact the finding is warranted that the trainmen were aware plaintiff was in peril when he approached the crossing oblivious of impending danger.That plaintiff may then have been physically able to avoid the...